Three of Maine’s four federally recognized Indian tribes are discussing legalizing marijuana on their lands, including at least one tribe that is considering commercial-scale production of marijuana as a way to provide jobs and income for its members.

The discussions in Maine reflect a national trend among tribal leaders who are considering whether to get involved in the rapidly growing industry, which is seen as offering potential for badly needed economic development.

Federal policy statement on marijuana, Indian tribes

The Passamaquoddy at Pleasant Point, the Houlton Band of Maliseet Indians and the Aroostook Band of Micmacs say they are actively studying or discussing legalization and whether it would bring economic benefits to their communities.

“We are looking from a health perspective as well as an economic perspective into the potential. We are gathering information about it,” said Rep. Henry John Bear, who represents the Maliseets in the Maine Legislature. “We have tribal members who are very interested in pursuing this. I have been approached by these members to get information.”

A Maliseet community in Canada already has an agreement with a private company to build a medical marijuana facility on tribal land in New Brunswick.

Members of the three Maine tribes say they are in the very early stages of discussing the issue and have made no decisions about the scope of legalization, such as whether it would be limited to allowing tribal members to grow or use marijuana for personal purposes, or whether it would be defined more broadly, to pave the way for commercial production of plants or related products.

Maine’s fourth tribe, the Penobscot Nation, says it has no intentions of legalizing marijuana.

‘POT GOLD RUSH’

The tribes are reacting to the U.S. Justice Department’s announcement in December that it would allow the nation’s Indian tribes to legalize and regulate medicinal or recreational marijuana on their reservations as long as they abide by the same federal guidelines that states must follow with legalization, such as keeping the substance away from children and preventing drugged driving.

How the state of Maine would deal with jurisdictional issues that could arise from tribes that get into the business remains unclear. Timothy Feeley, a spokesman for the Maine Attorney General’s Office, said the department has not studied the U.S. Justice Department guidance and could not comment specifically on the topic. He said that as a general rule, state law applies on tribal land.

Tribal leaders nationally are talking about the possibility of marijuana cultivation as a way to generate income and create jobs. A California tribe is poised to become the first American Indian tribe to grow medical marijuana when it breaks ground on a $10 million greenhouse this year.

About 200 tribal leaders met two weeks ago at the National Congress of American Indians, which included a talk on legalization by Justice Department officials. It was also the topic of a conference at the Tulalip Indian Tribes’ resort in Tulalip, Washington, where 75 tribes gathered in late February. Legalization is on the agenda at a major tribal economic summit in Las Vegas this month.

Anthony Broadman, a partner in Bend, Oregon, for Galanda Broadman, an American Indian-owned law firm in Seattle, said the federal memo released late last year is prompting a “pot gold rush” among tribes and, potentially, businesses looking to capitalize on the industry.

“The door has been cracked and people are seeing the potential for rapid economic growth,” he said.

While marijuana is illegal under federal law, 23 states, including Maine, have legalized marijuana for medical use and four states and Washington, D.C., have allowed it for recreational use. Two groups in Maine are pursuing 2016 referendums to legalize recreational marijuana if a legalization bill isn’t adopted by the Legislature this session.

Public support of marijuana legalization is also growing, with the General Social Survey showing for the first time that a majority of Americans support legalization. The survey indicated that 52 percent of Americans favor legalization, while 42 percent oppose it and 7 percent are undecided. The General Social Survey, conducted every two years, is considered one of the nation’s most reliable.

The Passamaquoddy community at Pleasant Point has been talking about the issue while the tribe as a whole, which includes Indian Township, has not, said Matt Dana, who represents the Passamaquoddy in the Maine Legislature. Dana said legalization was on the agenda of the Pleasant Point tribal council, headed up by Chief Fred Moore.

Moore did not respond to multiple requests for comment last week.

The Aroostook Band of Micmacs tribal council was scheduled to talk about marijuana legalization March 4. Chief Edward Peter-Paul did not respond to several requests for comment following the meeting.

The Penobscot Nation has no interest in legalizing cannabis, said Rep. Wayne Mitchell, who represents the Penobscots in the Maine Legislature, in a meeting last week with the Portland Press Herald’s editorial board.

Mitchell said the tribe is focused on its Penobscot National Enterprises, which services the president’s helicopter among other things, for economic development.

Chief Kirk Francis of the Penobscot Nation said tribal leaders are not currently discussing marijuana legalization because of concerns about substance abuse and the tribe’s focus on other issues, such as water pollution and domestic violence.

“We have bigger fish to fry,” Francis said.

Bear, of the Maliseets, said no one in his community has expressed concern about legalization causing more substance abuse problems, which has been an issue for tribes in other parts of the country. Operating a medical marijuana operation would be a natural for the Maliseet whose cultural traditions include smoking herbs, he said.

“We are meeting with a group to discuss the issue,” Bear said.

Bear said Maliseet communities in Canada are already pursuing marijuana cultivation. OmniCanna Health Solutions of Colorado Springs, Colorado, has entered into an agreement with the Maliseet First Nation in Tobique, New Brunswick, to build a medical marijuana manufacturing facility on 1,000 acres set aside by the tribe for that purpose.

Medical marijuana has been legal in Canada since 2000. Last year, a change in the country’s production and distribution laws made it legal for any licensed company to grow and ship medical marijuana to patients. The prime minister’s office has said it will not seek to decriminalize the drug for recreational use.

Bear said the discussions in Maine are preliminary. He said if it came down to any decision to legalize, the Houlton Maliseets would be very careful to be respectful of their neighbors.

BREAKING GROUND IN CALIFORNIA

The Pinoleville Pomo Nation in California is expected to be the first tribe to grow medical marijuana, according to the Indian Country Today Media Network. The California tribe is expected to break ground this spring on a $10 million, 100,000-square-foot greenhouse with funding from FoxBarry Cos., a Kansas group that funds Indian businesses. The facility is expected to employ 50 to 100 people.

Barry Brautman, president of FoxBarry, said his company has fielded calls from dozens of tribes across the country since the federal ruling was announced.

Broadman, the Oregon attorney, said many tribes are likely to be cautious as they consider getting into the marijuana business because of quickly evolving federal law. Tribes also must exercise caution when it comes to outside business interests that might take advantage of the tribes seeking to get involved, he said.

“There are a lot of people looking to help and there are a lot of people looking to help themselves,” he said. “This follows the same model that Indian gaming did in the 1980s and ’90s.”

That experience with gaming – now a $35 billion industry – could also help tribes that want to regulate marijuana, Broadman said.

“It’s different than gaming, but in a lot of ways it’s very similar. Tribes have 30 years of experience in the most regulated industry in the United States,” he said. “My sense is that tribes that are going to regulate marijuana would have regulations that are more robust than state regulations.”

Whether the 1980 Maine Indian Claims Settlement Act could complicate efforts by the tribes in Maine to legalize marijuana was not immediately clear. The state and the tribes hold different interpretations of the act.

Under the 1980 settlement, any federal laws enacted after Oct. 10, 1980, for the benefit of Indians that would affect or preempt the laws of Maine do not apply unless Maine specifically makes them applicable. That is why Maine tribes have not been able to take advantage of post-1980 federal court rulings that allowed gambling casinos on Indian land in other states.

Under the act, the Maliseets are subject to Maine’s regulatory laws, as are the Passamaquoddy and Penobscots – except for fishing, hunting and “internal tribal matters.” The Micmacs, who didn’t receive federal recognition until 1991 and are not mentioned in the act, contend that the settlement does not apply to them.

Correction:This story was revised at 12:01 p.m., March 16, 2015, to reflect that under the 1980 Maine Indian Claims Settlement Act the Maliseets are subject to Maine’s regulatory laws, as are the Passamaquoddy and Penobscots – except for fishing, hunting and “internal tribal matters.” The Micmacs, who didn’t receive federal recognition until 1991 and are not mentioned in the act, contend that the settlement does not apply to them. An previous version of this story misstated the act’s scope.

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